NCJ Number
110288
Journal
Michigan Law Review Volume: 86 Issue: 1 Dated: (October 1987) Pages: 1-50
Date Published
1987
Length
50 pages
Annotation
The fourth amendment's protection against unreasonable searches and seizures by government agents is undermined by the 'comparative reprehensibility' reasoning of some judges, i.e., if the evidence establishes guilt for a serious crime, it is more reprehensible to let the offender go free than to let the evidence be admitted even though it was obtained illegally.
Abstract
Professor Edward L. Barrett, Jr., Dean John H. Wigmore, Arizona Supreme Court Justice James D. Cameron, and Judge Robert Bork, among others, have advanced the reasoning of 'comparative reprehensibility.' Justice Cameron has reasoned, for example, that 'Where the criminal conduct involved is more dangerous to society than the police misconduct, it does not make sense to sacrifice the criminal prosecution in order to deter the police.' This reasoning would exclude the application of the exclusionary rule to illegally obtained evidence in cases of serious crimes. This would then require the courts or legislatures to determine which crimes are sufficiently serious to permit the police to disregard constitutional mandates and obtain evidence by any means. The 'comparative reprehensibility' argument misunderstands the purpose of the exclusionary rule. It does not intend to release 'guilty' offenders but rather to require that culpability be determined on the basis of only legally obtained evidence. The U.S. Constitution requires that a criminal case be built upon evidence that has been constitutionally obtained. The exclusionary rule simply enforces this mandate. The nature of the crime is irrelevant to the constitutional principle involved. 221 footnotes.